Visiting the Senegalese Legal System and Legal
Research: A Human Rights Perspective

By Horace
Sègnonna Adjolohoun

Horace Sègnonna Adjolohoun, holds a B.A. (NSA Benin 1998), an LL.B.
(Usam 2004), an M.Sc. (Brussels 2005), and an LL.M. in Human Rights and
Democratization in Africa (Pretoria 2007). He is a lawyer and human rights expert,
and currently serves as the Benin Constitutional Court Fellow. He has worked
with the Francophone Africa Supreme Courts Association on a judicial human
rights protection program (2001-2006). Research interests include international
human rights law in domestic courts, corruption and the realization of
socio-economic rights, national human rights institutions, human rights in
Africa by the African Union, and RECs and the United Nations.

1. Introduction

Senegal is a relatively
decentralised[1] civil law country with three branches
of government, the executive, legislature and judiciary, which share in the
state powers. According to Senegalese Constitution,[2] which is
the supreme law of the land, the country is a liberal democratic republic.[3]
The organs of state power are the President of the Republic, the National
Assembly, the Government and the Judiciary.[4] Constitutionally
organised as a semi-presidential system with checks and balances, the rule of
law and separation of powers,[5] Senegal nonetheless has a rather
strong presidency.

The President of the Republic is
the head of state, and the Prime Minister is the head of government. Although
the Constitution establishes the Prime Minister’s government as autonomous and affords
it executive power, the Government appears to be controlled by the president.
Appointed by the President of the Republic, who is very active in the
day-to-day administration of the country, the Prime Minister is confined to “heading
the Government” in conducting and coordinating national policies and public
affairs. The Government is accountable to both the President and the National
Assembly,[6] and both institutions are empowered to
dismiss the Prime Minister. Ministers are appointed by the Prime Minister in consultation
with the President of the Republic. All Constitutional and State Councils’
members are appointed by the President of the Republic. Members of the High
Court of Justice, which has the power to prosecute top officials,[7]
including the President, are appointed solely by the National Assembly.

Judicial power is vested in several
different institutions: the Constitutional Council deals with constitutional
matters, which as of to date do not expressly include human rights issues; the Conseil d’Etat (State Council) deals with administrative matters; the Court of
Cassation deals with criminal matters; the Cour
des Comptes is charged with checking public accounts, and other courts and
tribunals also exist. Each of these superior courts is at the top of the
hierarchy of courts for their specified jurisdictions. The appointment of all
judges is done by the President of the Republic on the recommendation of the
High Council of Magistrature,[8] after the nomination by the minister
of justice. Civil offences and procedure are contained in the Civil Code and
Civil Code of Procedure. Criminal offences and procedure are contained in the
Criminal Code and the Criminal Code of Procedure.[9] These are national
laws, which apply to all courts throughout the country without respect to their
level in the judicial hierarchy. Presumption of innocence, public trials and
right to a legal counsel are guaranteed for criminal proceedings. For family
inheritance and other related cases, Muslims are given a choice between
customary law and civil law. Despite relatively recent legislative reforms dealing
primarily with the family code, equality between men and women is yet to be
solidified in Senegal.[10] Importantly, Senegal has ratified
without reservations the International Covenant on Civil and Political Rights
(1978) and the International Covenant on Economic, Social and Cultural Rights
(1978), the Convention on the Elimination of all forms of Discrimination
Against Women (1985) and the Convention on the Rights of the Child (1990). The
country is also party to the African Charter on Human and Peoples’ Rights
(1982) and its Court Protocol (1998).

A bicameral parliament makes up
the legislature, which comprises the National Assembly of 150 members as the
lower house, and the Senate as the upper house with 100 members.[11]
National Assembly sessions, debates, outcomes and documents are published in extenso in the Journal Officiel de la République du Sénégal.[12] Law
reporting is also done through the Gazette.[13] Senegal disposes of
various legislation in the form of codes including on environment,
telecommunications, gas, forest, maritime, and labour.[14]

1.1 Accessing the Law of
Senegal

Although accessing legal
instruments in force within the Senegalese legal order, or cases decided by
domestic courts, is challenging, there are certain sources and entry points
which facilitate research on the law of Senegal. In situ research at domestic courts is a primary source for both
collecting instruments and tracing cases. For accessing codes (civil, criminal, public
contracts, mining, and others), decrees, and other statutes, the best source is
the official website of the Government of Senegal.[15]
Law libraries at Cheikh Anta Diop University in Dakar and Gaston Berger
University in Saint Louis are also useful places to find the civil code, the civil
code of procedure, the penal code, and the penal code of procedure, as well as
law reports and law journals. Legal academia in Senegal does not include Law
Schools in the common law countries’ models. Dakar and Saint Louis Universities
rather host Law Faculties, which differ in many instances from what is seen in
common law countries. For example, sustained law shops, journals and reports,
legal clinics and other specific legal activities are not part of Law
Faculties’ tradition in Senegal, though the Gaston Berger University in Saint
Louis hosted the African Moot Court Competition in 2007 and their Law Faculty
team were runners-up in 2008’s Moot at the University of Pretoria in South
Africa.[16]

However, Senegal has a well
established, organised and productive Judicial Training School (Centre de Formation Judiciaire de Dakar),
which trains magistrates and other legal practitioners through specialised
courses, seminars and other workshops. With regards to initial training of
magistrates, the National School of Judicial Training (École Nationale de Magistrature) also recruits and selects trainees
for a two-year judicial course. Both schools are located in Dakar. In addition,
the UNESCO Human Rights Chair at Cheikh Anta Diop University in Dakar is
renowned for training graduates of civil society groups, women organisations, lawyers
and other law faculties in human rights and democracy. In the absence of an
official law journal in Senegal, law reflections are published through various
revues or bulletins by schools referred to above, as well as other human rights
and civil society organisations. Unfortunately, no online access to such
publications is available, as they can only be obtained at local bookshops in situ. Online, RevueBanque,[17]
an e-shop with the ability to access or scan legal documents, proposes existing
and new codes for publication. Some legal instruments including the Family Code
and recent related amendments are accessible on Droit Francophone,[18]
an online French-speaking legislative and jurisprudential database gathering
information on the judiciary’s activities in Francophone Africa. Finally,
obtaining relevant and updated information on Francophone Africa in the legal
and judicial fields proves to be easiest and most effective when done from judicial
networks. Three such networks are the Francophone Africa Supreme Courts
Association,[19] the Francophone Cassation Courts
Association[20] and the Francophone Constitutional
Courts and Councils Association.[21] Their websites provide access to laws,
decisions, statutes, courts organisation, legislation, and membership to
regional and international relevant Organisations.

While providing an overview of the
legal system of Senegal, this paper will emphasize norms and institutions which
are in place that enable Senegal to domesticate and apply international law,
especially human rights law. The following sections give relevant information
regarding various state’s organs and powers, courts, and national and
international legal instruments. Key legal issues are also discussed, such as
equality in and before the law, access to justice and effective justice, women
and children’s rights, gender equality, harmonisation of domestic legislation
with ratified international law, and reception and application of foreign
international judgments.

Part I: Human Rights Law in
Senegal: Institutions and Norms

2. Overview of the Senegalese Legal System

The Constitution of Senegal
addresses the promotion and protection of human rights in both the Preamble and
the Bill of Rights. The Preamble affirms the people’s adherence to “the
international instruments adopted by the United Nations and the Organization of
African Unity,” citing among others, the Universal Declaration of Human Rights
(UDHR), the Convention EDAW, the CRC and the ACHPR.[22]
Paragraph 12 addresses discrimination and inequality. The Preamble also
proclaims the right of everyone to participate in public affairs and have
access to public services.[23] Importantly, the Preamble is ‘an
integral part’ of the Constitution.[24] The Bill of Rights is enshrined in Title
II of the Constitution, entitled ‘Freedoms and the person’. Equality before the
law – with express mention of sex – is protected in Title I,
entitled ‘The State and sovereignty’. The Bill of Rights covers all three
‘generations’ of rights and seems to adopt indivisibility and interdependence
between categories of rights. Both individual and group rights are recognized.
Particularly, Article 8 sets out a number of rights that are usually contained
in a Bill of Rights. It reads:

The Republic of Senegal guarantees to
all citizens their individual fundamental freedoms, economic and social rights,
as well as group rights. These freedoms and rights are: Civil and political
liberties, freedom of opinion, freedom of expression, press freedom, freedom of
association, freedom to hold meetings, freedom of movement, freedom to protest,
cultural freedoms, religious freedoms, philosophical freedoms, union freedoms,
freedom of enterprise, the right to education, the right to literacy, the right
to property, the right to work, the right to health, the right to a healthy
environment, and the right to a variety of information. These freedoms and
rights may be exercised under the conditions provided by law.

Specific civil and political
rights are guaranteed in Article 7 (life, security, protection against physical
mutilation, gender equality in and before the law), Article 9 (nullum crimen
and right to defence; comprehensive fair trial rights’ protection), Article 10
(freedom of expression and press subject to public order), Article 11 (creation
of press body without authorization required, but with press regulations set up
by law), Article 12 (freedom of association subject to law and public order), Article
13 (secrecy and inviolability of communication and correspondence subject to
law), Article 14 (freedom of movement subject to law), and Article 16
(inviolability of home – but not clear right to privacy – subject
to judicial searches, public order and security). Under Title II, only one
right is specifically guaranteed in the range of economic, social and cultural
rights: Article 15 (right to property subject to public necessity expropriation
but prior due compensation, gender equality in possession and ownership of
land). Other rights in this category are provided under subsequent sections in Title
II: ‘Marriage and the family’ (Articles 17 to 20), ‘Education’ (Articles 21 to
23), ‘Religions and religious communities’ (Article 24) and ‘Work’ (Article 25
– specific mention of gender equality in employment, salary and taxation;
right to create and join labour unions).

2.1 The Legal Framework for Promotion
and Protection of Human Rights

The general legal framework in
Senegal is also in favour of the promotion and protection of human rights, although
the country has not enacted sufficient legislation to respect implementation
clauses in major human rights treaties.[25] Efforts have been made from an
institutional standpoint. The following state organs have been established and
are involved in the promotion and protection of human rights:

Established
in 2004[26] and led by a woman lawyer and
government minster,[27] the Commission includes a Guichet
des droits de l'homme (a board) in charge of receiving complaints and making
suggestions to the President of the Republic on subsequent responses.[28] The
Commission also comprises a follow-up working group in charge of following the
implementation of observations and recommendations made by the Comité
Sénégalais des Droits de l'Homme.[29]

The Comité Sénégalais des
Droits de l’Homme:

The Senegalese Human
Rights Committee is the state human rights institution. Originally, it acted as
a representative of trade unions and youth and women’s movements.[30]
Its functions have subsequently been enlarged, as it serves as an intermediary
between public powers and human rights non-governmental organisations, and
coordinates the work of those organisations.[31] In 1997, the Committee
became an independent tripartite and advisory body for dialogue, consultation
and promotion of human rights.[32] The Committee was in practice the
body chosen by the Government to make proposals for the implementation of the
decisions of the human rights bodies, such as the Human Rights Committee (HRC)
in the case of Famara Koné v. Senegal,
discussed under sub-section 1.3 below.

The Ombudsman (Médiateur)

Traditional
attributions and powers of the Ombudsman have been extended to preventive
intervention and proprio mutu seizure. Further, it has competence to
settle different conflicts between public administration and private
corporations.[33]

This body is an
inter-ministerial Committee on Human Rights and Humanitarian International Law,
which complements the work of the Senegalese Human Rights Committee and
represents Senegal in international human rights bodies.[34]

2.2 The Domestic Status of
International Human Rights Law

Senegal is a monist country.
Monism is also known as the doctrine of automatic incorporation.[35]
This means that once a treaty is ratified by a state and published at domestic
level,[36] it automatically becomes part of the
law of the land and can be invoked as a cause of action before domestic courts.
Moreover, in case of conflicts, municipal law takes a subordinate position.[37]
Under Article 98 of the Senegalese Constitution, ‘treaties or agreements duly
ratified shall, upon their publication, have an authority superior to that of
the laws, subject, for each treaty and agreement, to its application by the
other party’. A question may arise as to whether or not ‘the laws’ referred to
include the Senegalese Constitution itself. Article 97 of the Constitution
clears this equivoque by providing that where an international agreement has a
provision contrary to the Constitution, the authorization of ratification or
approval may only intervene after the amendment of the Constitution.[38]

Despite this normative precedence
IHRL enjoys in the municipal order, the monist ‘direct incorporation’ does not
seem to be unequivocal in judicial practice in Senegal. The best example is the
Habré case[39] where
the convention was ratified and published but was refused applicability. Against
‘direct incorporation’ of international law at domestic level under monism, was
opposed a judicial ‘non-self executing’ status, thus indicating that there is a
long way to go from ‘direct incorporation’ to ‘direct application’. The effect
of this is that a convention can become part of domestic law through monist
direct incorporation or even dualist legislative enactment without being of any
remedial use for various administrative, legal or judicial technicalities. It
is thus important to find out what the concept of a ‘self executing’ norm
encompasses and whether the African Court Protocol is self executing or not, especially
as applied to the Senegalese case study.

A norm which is deemed to be ‘self
executing’ is one that ‘lends itself to judicial or administrative application
without further legislative implementation’[40] or normative action.
Bearing in mind the vagueness and complexity of the language in which
international human rights instruments are generally drafted, these conventions
might be self executing or not, wholly or only in some of their provisions. It
will all depend on the domestic legal order. For instance, it is foreseen that
the ICESCR will easily be self executing in South Africa because municipal law
already provides for similar or same standard rights.[41] By
contrast, while the Senegalese Criminal Code recognises torture as a crime in
accordance with Article 4 of the CAT, universal competence was denied to the
municipal judge because the country took no legislative action as of implementing
Article 5(2) of the same convention. Generally speaking, Francophone Africa
judges consider a treaty to be ‘self executing’ if ‘provisions are sufficiently
precise to fit into legal and financial structures of the municipal law.’[42]
Consequently, for non-self executing treaties to be applicable, states parties
are obliged to undertake measures such as vote of credits, enactment of laws or
modification of existing legislation. In any case, there are three principal relevant
factors as to whether a treaty is self executing or not:[43] whether
the intention of the drafters was to create a self executing treaty in whole or
in part, whether the purpose and subject matter of the treaty was to create
specific individual rights, and finally, what is the nature of states’
obligations under the considered treaty.

Referring to these factors, a priori, the African Court Protocol is
arguably self executing in Senegal. First, the Protocol is a procedural
instrument to the African Charter, both of which Senegal ratified. State
parties to the Protocol recognise the establishment of the Court as a means of
attaining the objectives of the Charter.[44] Further, by adopting
the Protocol, parties clearly intended to provide a very important right,
without which Charter’s rights would be worthless: the right to both procedural
and substantive remedies in case of violation. Second, the purpose of the
Protocol is to create an individual right to remedies as reads its Article
27(1). This specificity of the Protocol makes the remedies it provides a sort
of ‘bare minimum’ right of immediate application upon domestic incorporation.
Besides, the Charter’s rights constitute the subject matter of the Protocol.
Finally, states’ main obligation under the Protocol is the implementation at the
domestic level of the judgments that will be rendered by the Court. In this
regard, by ratifying both the Charter and the Protocol, Senegal committed
itself to apply these conventions, including the implementation clauses
provided therein. More specifically, Senegal must not only comply with the
judgments, but must also guarantee their execution according to Article 30 of
the Protocol. Notwithstanding the precedent development, it is important to
stress that whether there exists in Senegal relevant municipal laws into which
the African Charter’s provisions can fit is another issue. Senegalese justices
from both the Court of Cassation and the State Council consider the very poor
national case law on the Charter’s rights[45] to be a result of the
fact that municipal law – they cite the Constitution, including its
preamble as well as laws on freedoms – already recognises and provides
the considered rights.[46] It is worth noting that during the
colloquium referred to above, the Senegalese justices commented that the Habré decision was a refusal of
cassation judges to implement the convention, which Article 4 wordings give
unequivocal universal competence to Senegal to do, notwithstanding Article 669
of the Criminal Code of Procedure.

All of this aside, the self
executing nature of the African Court Protocol argued above will not a posteriori stand in front of actual
questions related to the implementation of the African Court judgments in
Senegal. The intrinsic nature of an international convention does not make it
precise and comprehensive enough to deal with technicalities related to the
various domestic realities of states parties. Therefore, it shall be considered
that a margin is left to states to organise necessary measures (including
administrative, legal and financial) ‘to give effect to’ the considered
convention. Hence, the relevant question is whether Senegal has taken necessary
administrative, legal and financial measures for the African Court Protocol to
be self executing, meaning that the Court’s judgment may be enforced in Senegal
without any impediment. Demonstrably, this is not the case to date. Indeed, a
framework exists in Senegal: administrative (political and administrative
bodies), legal (judicial bodies and the exequatur
procedure) and financial (individuals may be paid compensation by the minister
of finance). Yet, as developed later in this report, they have not been
designed for and will not meet the effectiveness demanded by human rights
matters, which the African Court’s judgments will be dealing with.
Consequently, they will need to be revisited and adapted if not newly designed
for Senegal to provide for the specific framework conducive to its commitments
under both the African Charter and the African Court Protocol. To sum up, the
African Court Protocol is yet to be effectively domesticated in Senegal. The
question is discussed further on in this paper.

For now, regarding the recognition
of treaty bodies at the domestic level, once international agreements
(including human rights treaties) are binding upon Senegal and receive direct
application in the municipal order, relevant treaty bodies should consequently
be recognised by the Constitution, as well as municipal, administrative, and
judicial authorities. At this point, it shall be recalled that ‘Senegal has
accepted the primacy of international standards over national norms’.[47]
Such recognition is not, however, to be presumed, as sometimes international
agreements provide for prior acceptance by states parties of procedures (e.g
individual complaints) or jurisdiction (to hear a particular case) of
international judicial or monitoring treaty bodies. In this regard, Article
34(6) of the Protocol provides that the African Court shall not receive any
petition under Article (5)3 – that is, individual complaints –
involving a state party which has not made a declaration accepting the
competence of the Court. Senegal is yet to make such declaration.

There is no express mention of the
recognition of international customary law in the Senegalese Constitution. Yet,
as has been pointed out above, the Preamble is part of the Constitution and
thus acquires the same rank as the Bill of Rights’ provisions. Under the
Preamble, Senegal adheres to the UDHR and the international instruments adopted
by the United Nations, some provisions of which have gained universal normative
value.[48] For instance, some universal and core
rights such as non-discrimination, gender equality, education and health are
guaranteed by the Constitution. Furthermore, the Senegalese people seem to
share some universal human rights values such as ‘their determination to fight
for peace and fraternity together with all the peoples of the world’[49]
or ‘their recognition of the existence of sacred and inalienable human rights
as the basis of any human community, of peace and of justice in Senegal and the
world’.[50] The recognition of treaty bodies’
concluding observations is not expressly mentioned in the Constitution.

2.3 Domesticating
International Treaties and Decisions of Treaty Bodies

West African countries of the
French legal tradition follow the same ratification process.[51] The
process generally includes two phases: the agreement’s review phase and the
ratification phase strictly speaking.

Review of the agreement

After the signing of an Agreement
by a duly mandated representative of the state, it is up to the Minister in
charge of Foreign Affairs to make a referral report in a document known as a
statement of reasons, to prepare a draft bill authorizing the President of the
Republic to ratify it and a draft decree ordering its publication, and to
forward all of the above in the form of a single document, in several dozens of
copies, to the Secretary General of the government or the corresponding
authority. This authority then submits the document to the Cabinet and, after
its adoption by the Cabinet, to the monitoring body in charge of verifying the
constitutionality of legislation.[52] When the document reaches this body,
there are two possibilities:

The agreement is
considered unconstitutional and may only be ratified after a review of the
country’s Constitution;[53]

The text is deemed
to be consistent with the Constitution.

In the latter case, the text of
the agreement is sent to Parliament, which reviews and adopts a law authorizing
the President of the Republic to ratify the agreement.[54] Under
this procedure, the text of the Agreement is reviewed by three state
authorities, which are:

The executive
authority (Cabinet);

The judiciary
(body in charge of monitoring the constitutionality of laws); and

The legislative
authority (Parliament).

Ratification

The act whereby Parliament
authorizes the President of the Republic to ratify an agreement is communicated
to the Minister in charge of Foreign Affairs, who, on that basis, prepares
letters ofratification and submits
them to the President of the Republic for signature. The letters are produced
in two copies, and after they are signed, they are sent back to the Ministry in
charge of Foreign Affairs, which then sends one copy to the other party in the
case of a bilateral agreement or to the depositaryin the case of a multilateral agreement. The Ministry keeps the
second copy. However, in some cases, rather than enacting a law authorizing the
President of the Republic to ratify an agreement, the Parliament may directly
ratify the agreement in question through the adoption of a ratification act.

As described above, once they are
ratified and published in the official gazette, international treaties take
precedent over all laws in Senegal. By virtue of this direct incorporation
under monist systems, international treaties become law in the municipal order.
Yet, as stressed in sub-section 2.2 of this report, this is not as easy, as
situations may arise where an international treaty has no legal ground in
municipal, normative, or procedural framework to be directly applied. Hence,
there may be a difference between domestic validity and direct applicability,[55]
not only from a legal standpoint as such, as it was argued in the Habré case, but also in practice. Indeed,
international conventions need to fit within a certain legal, administrative
and financial domestic framework in order to become directly applicable as any
other municipal law. Moreover, direct applicability may be hampered by the lack
of judicial activism, which enables purposive and progressive interpretation of
international treaties when adjudicating human rights matters. As a matter of
fact, monist countries such as Senegal[56] and Benin[57] have
refused to apply IHRL after ratification. Surprisingly, despite the absence of
implementation measures or even prior to ratification, judges have directly or
indirectly applied IHRL – namely the African Charter – to
adjudicate cases in Botswana,[58] Ghana,[59] and Kenya.[60]
For all those reasons, domestication should be understood as bringing
international law home through implementing legislation or other means as
generally required by treaties. In Senegal, domestication has been done through
enactment of new legislation, or repealing or amendment of inconsistent
legislation as discussed below.

The Senegalese government was only
in a few cases required to implement the decisions of human rights treaty
bodies. The government’s typical practice in such an instance has been an
institutional and participatory approach, which consists of requesting the
Senegalese Human Rights Committee and other national competent bodies to make
proposals for the implementation of the decision being considered.

The most relevant to date is the Famara Koné case, decided by the UN
Human Rights Committee in 1994. This case illustrates how Senegal has received
and implemented an international human rights body’s decision. The case goes
back to 1982, when the victim, a Senegalese citizen, was arrested and detained
by the government for his involvement in an alleged coup in Gambia. Transferred
to Dakar, he was convicted for ‘acts deemed to compromise national security’,
arrested and then released on bail for medical reasons. Ultimately, his case
was never heard as he benefited from an amnesty in 1988. In 1989, he filed a
complaint with the UN Human Rights Committee for ‘torture, degrading treatment
and persecution for his political opinion as well as arbitrary detention’. The
UN Committee found Senegal in violation of the ICCPR, and recommended that the
government compensate the victim for its abuse of power.[61]
Pursuant to this decision, the Prime Minister of Senegal requested the
Senegalese Human Rights Committee to examine the case for an amicable domestic
settlement.[62] In 1997, an agreement was signed between
the state (represented by the Principal Inspector of Judicial Services) and Mr
Koné. In terms of this agreement, Mr Koné accepted a plot of land to live on, a
sum of CFA 500 000 (about 762 Euros), and medical insurance in
compensation for damages he had suffered. In May 2001, the victim was still to
receive a plot of land, and filed a complaint with the Senegalese Human Rights
Committee. In its response, the Committee in 2001 had requested the State
Minister in Charge of Presidential Affairs to provide all necessary information
on the case.

3. Domesticated Treaties
and Relevant Legislation

Although Senegal has a strong
record of ratification of international human rights treaties, implementing of
such legislation is very poor especially as regards economic, social and
cultural rights. The ESCR Committee noted as follows:[63]

Although
the new Constitution of Senegal in its preamble guarantees the enjoyment of
economic, social and cultural rights, no legislation, apart from the new Labour
Code, has been passed to implement the rights guaranteed under the Covenant.

The following implementation
efforts have been made since Senegal’s second report to the Committee:

·Law No. 2005-02 against
human trafficking and for protection of victims;

·Amendments in 2004 to
Law Nos. 91-92 to make education free and compulsory for children aged 6-16;

·Incorporation of CRC
into the Constitution of 2001;

·Law No. 99-05 of 1999
prohibiting excision, sexual harassment, paedophilia and sexual assault, as
well as all forms of sexual mutilation, sexual violence and corruption of
minors; and

·Labour Code of 1997,
which fixes minimum age of employment at 15.

As regards civil and political
rights, Senegal has adopted a legislation incorporating the conventional
incrimination of torture in its Criminal Code,[64] in accordance with Article
4 of CAT.

3.1 Judicial Interpretation
of Treaty Provisions

Reliance on International Human Rights Law in Judicial Adjudication:

Although no specific judicial body
is constitutionally vested with adjudicating human rights matters in Senegal,
the Constitutional Council has decided interesting cases.[65] In Decision
15-94 of 27 July 1994 for example, the Council decided that by
differentiating between candidates for the magistracy, Article 4 of the Law 92-27
of 30 May 1992 was contrary to the Constitution. The Council based its decision
on ‘the constitutional principle of equality by reference to Article 6 of the
Declaration of the Rights of the Man and the Citizen of 1789 and article 21(2)
of the UDHR’.[66] In another decision,[67] the
Council made reference to ‘equality in law and before the law as enshrined in
the Declaration of 1789, the UDHR and Article 3 of the ACHPR’.[68]

Reliance on International Human Rights Law upon Ratification but Prior
to Domestication:

On this point, cases decided by
Senegalese courts are quasi-inexistent.[69] Two cases can be relied on to
exemplify this state of affairs. The first is the well-known Habré case in which both the Court of
Appeal of Dakar and the Senegalese Court of Cassation held that the United
Nations Convention Against Torture (CAT) was not directly applicable in
Senegal. According to the Courts, the municipal judge was incompetent to apply
the Convention as it is not self-executing, but needs to be integrated into the
municipal order by ‘necessary measures’ establishing local courts’ competence.
According to the judges, the CAT can only be appreciated under Article 669 of
the Code of Criminal Procedure.[70] Even though the case was not about
Senegalese courts receiving and enforcing an international judgment, it gives
an idea of the reaction such judgment may face where internal law or legal
technicalities are considered to supersede international conventions.

The second case refers to the
‘transfer’ to the International Criminal Tribunal for Rwanda of a Rwandan
refugee residing in Senegal who was accused of genocide. Senegal executed the
referral of the ICTR in application of the Rome Statute.[71] This is
an interesting case which shows that Senegal may respect orders from an
international judicial body. But a referral is not a judgment, the enforcement
of which may require a specific procedure for reception and have financial
implications.

Considering that application of
IHRL may cover both adjudication and reliance as a cause of action, the Sega Seck Fall case[72] is also
deemed of interest. In this case, Mr. Fall, a trade union leader, challenged
before the former Supreme Court of Senegal[73] a presidential decree
which dismantled the Senegalese Teachers’ trade union. He requested that the
Court declare the decree in violation of the WTO Convention no. 87, Article 4 of
which provides that a workers’ association cannot be dissolved by an
administrative act. The Supreme Court rejected this claim on the ground that
there was no proof of publication of the convention. The judges then proceeded
to argue that, even assuming the convention was applicable in Senegal, ‘it
shall not in the “present conditions” prevail on the law, which the impugned
decree legally takes from’. Such pronouncement is surprising at least from two
standpoints. First, while the Supreme Court’s judges argued the lack of
publication, they seemed to forget that the principle nemo censetur legem ignorare applies equally and foremost to
judges. Second, the terms “in the present conditions” seem to suggest that the
case was decided under the particular circumstances of the instance.
Unfortunately, the “particularity” of such circumstances has not been made
clear by the judges. Eventually, Senegal put an end to this contradiction by
adopting its Code of civil and commercial obligations. This case is similar to
the Habré case, following which
Senegal adapted its legislation to organise the trial of Hissen Habré.

4. Procedure for the Domestic Enforcement of Foreign Judgments

The existing procedure is the exequatur applicable to foreign
judgments seeking enforcement in Senegal. However, it is important to mention
that the exequatur is a procedure
aimed at ‘declaring enforceable in a state a judgment or an arbitration
decision rendered in another state’.[74] For instance, this would be a
decision of a Senegalese judge giving to a judgment of a Nigerian court the
necessary binding force in the Senegalese legal order. In practice, the
considered dispute often involves only private persons. This is because public
entities, namely states’ entities and officials, generally benefit from
immunities on foreign territories. It will therefore be almost impossible to
have Senegal condemned by a judgment from a Nigerian court, which would lack
both competence and legal normative ground to do so. Hence, it is necessary to
distinguish between national and international or supranational judgments when
it comes to enforcement of foreign judgments in Senegal, and Francophone Africa
in general.

Even though the exequatur appears to be relevant to only
“national judgments,” it is deemed of interest as, in any case, both national
and international judgments will a priori
need an enforcement ordinance in order to be implemented. Furthermore, it is
useful to find out how foreign judgments are received in the Senegalese
municipal order. The exequatur is
filed with the President of the Regional Tribunal, which has jurisdiction rationae loci.[75] It is
subordinate to five general conditions and one specific one:

·The respect of the
principle of contradictory (fair trial rights, defence rights, parties should
have been summonsed, represented or declared defaulting);

·The absence of fraud to
law;

·The decision shall not
be contrary to the public order or a domestic judgment.[76]

As far as the general conditions
are concerned, the exequatur can be
refused if the applicant was discriminated against, namely by being treated
differently from national applicants of the state from which originates the
foreign judgment. Bearing in mind the habitual slowness of judicial proceedings
in African countries in general, the exequatur
can be a very challenging procedure. Further, the exequatur judge is left too much discretion and can delay or even
refuse to grant the required visa. Then, in any case, an enforcement ordinance
and registration are indispensable to have a judgment implemented. These two
conditions are applicable indifferently to foreign judgments and decisions of
Senegalese courts seeking enforcement in Senegal.

With regards to foreign judgments
coming from supranational bodies, it is necessary to put the exequatur procedure into context.
Namely, the relevant question is whether the forthcoming decisions of the
African Court fit into the definition of foreign judgments to which exequatur applies. Put another way, are
the African Court’s judgments considered foreign judgments and do they need to
be granted exequatur to become
enforceable in Senegal? As stated above, the exequatur procedure is applicable to ‘foreign judgments’ defined as
those coming from ‘another state’. Thus, only national judgments are concerned,
such as, for example, a judgment from a Nigerian court seeking enforcement in
Senegal as exemplified above. Such an approach is understandable, as decisions
cannot go from one legal order to another without being subjected to the receiver’s
legal check. In such circumstances, how should decisions coming from
supranational or international judicial bodies be dealt with? Should not they
be considered ‘foreign judgments’ as well since they come from another legal
order? The answer to this key question goes back to the monism theory itself.
As exemplified below, it appears that the normative direct incorporation and
applicability of IHRL at the municipal level under monism applies for bodies
established under such treaties. Obviously, exceptions are made for conventions
including provisions on reservations and other similar declarations.

As discussed above, in Senegal, the
exequatur applies only to foreign
judgments coming from foreign national courts. However, arbitral sentences
coming from supranational bodies may need exequatur
to be enforceable in Senegal, though under quite different conditions.[77]
Thus, the general principle is the exequatur.
To this principle, exception is made for judgments coming from international
judicial or administrative bodies established under conventions to which
Senegal is party. Demonstrably, such judgments should no longer be considered as
international once they enter the municipal order. They must be given the same
reception and enforcement as domestic judgments because the law they adjudicate
has become a municipal law. At the end of the day, these judgments will face
the same difficulties as any domestic judgments. For instance, in Senegal, just
as throughout Francophone Africa, the litigant will have to register the
judgment and ask for an enforcement ordinance with the rationae loci or rationae
materiae competent municipal judge. The enforcement ordinance orders any
competent public agent to implement the judgement. The next stage of the
process should be as simple as for any other domestic judgments. With the help
of a lawyer or a bailiff, the litigant will have the judgment enforced. In cases
where the judgment is against the state, the Judicial Agent of the State
attached to the ministry of finance shall be seized or called before the judge
for necessary reparations. In sum, the municipal ordinary judge plays the
central role in the enforcement process. This demonstrably raises concern with
regards to the implementation of the African Court’s judgments. Is any judge in
Senegal competent to deal with human rights matters, which the African Court’s
judgments will be adjudicating? In democracies, deciding human rights issues is
vested in specific jurisdictions as provided by constitutions.

In Senegal, the Constitution is
silent on which municipal judicial or administrative body is competent to deal
with the enforcement of international judgments in the application of IHRL. As
the law stands, there is no specific procedure or competent body for the
enforcement of these particular judgments. This means that litigants will have
to seek enforcement ordinance with an ordinary judge, who might refuse it. In
this case, the Constitutional Council may be of help, but the institution
arguably holds no such competence and individuals lack direct access to the
institution. However, it is not impossible to overcome these problems as the
Council is actually more empowered than it appears.

It is interesting to point out
first that the Senegalese Constitution is very open to IHRL, with an express
mention of the African Charter, which rights the African Court Protocol is
aimed at implementing. In most constitutional systems in the world, human
rights are defined as constitutional matters in which constitutional courts are
competent. Despite its unclear constitutional human rights’ mandate,[78]
the Senegalese Constitutional Council has used other constitutional means,
namely by building on its regulatory and constitutional control powers[79]
to adjudicate human rights related cases.[80] Nonetheless, nothing
in the Constitution prevents other courts, especially the State Council and
Court of Cassation to deal with human rights cases. Thus, these courts may be
called on in the process of enforcing the African Court’s judgments or as
courts of appeal in case a lower court refuses (or accepts) to grant
enforcement ordinance or even assuming the state opposes or delays enforcement.
It is worth stressing here that both the Appeal Court and the Court of
Cassation of Dakar reversed the judgment of the first instance judge in the Habré case. By doing so, these courts
opposed direct application of a convention to which Senegal was party as
ascertained by the findings of the first instance judge. Surprisingly, the
Constitutional Council was not called on to decide which has precedence between
the CAT and the code of criminal procedure. Neither was the Council asked to
decide whether the refusal to apply an international convention was in line
with the constitution.

Another issue is the restricted
rules of standing, which does not allow direct individual access. Access to the
Constitutional Council is restricted to the executive[81] (the
President of the Republic, the Prime Minister[82] and the Minister of
Justice), the legislature[83] (the Speaker, the Bureau or at least
a tenth of parliamentarians) and the judiciary (State Council and Court of
Cassation).[84] No individual – including legal
practitioners – can directly submit a case to the Constitutional Council.
However, individuals can go through the judiciary to access the Council.
Indeed, individuals may invoke the exception of unconstitutionality of law
during a proceeding before the Court of Cassation or State Council.[85]
These courts must then refer to the Constitutional Council to decide. Besides,
all political parties and coalition of parties can access the Council as long
as they are duly registered. It is worth noting that the Council has no proprio mutu seizure.

All this said, two important
questions at this stage are the independence of the judiciary and states’
willingness to obey international law and judgments. In most of African
countries, the judiciary is a state power and judges’ training, appointment,
and career are directly managed by executives. For instance, very few courts in
West Africa have autonomous budgets, including supreme jurisdictions.[86]
It is a civil law principle that an ‘effective judgment’ is the one ‘that
produces expected effects; that is applied in practice’.[87] Yet,
enforcing a foreign judgment on the territory of a state necessarily requires
the support of the public force. It is all about creating rights and subsequent
effects in the municipal order. This touches upon an intrinsic attribute of
states’ sovereignty, which they generally protect jealously. It probably
explains why states execute orders only when they are willing to do so, where
they have interests. It should be wondered what the reaction of Senegal would
be in case a municipal judge grants an enforcement ordinance to a judgement of
the African Court against Senegal. Precedent judicial inconsistencies
experienced in the Senegalese context teach enough on the issue. Analysing why
and how the African Court Protocol should be implemented in African countries,
it is important to take into account states’ frontline role with regards to
implementation of human rights standards. This goes back to the very first
stage of drafting process in which states’ experts and representatives are
involved. For instance, the African Court protocol was developed following a
consultation that lasted over two years and involved experts and diplomats from
Senegal. In Senegal, negotiation and signing of international agreements is a
power reserved exclusively to the Head of State. It is not an exaggeration to
hold that ‘the Protocol is a compromise … seen as reflecting what is acceptable
for drafting states to commit themselves to’.[88] In such circumstances,
it is feared that political negotiations and implementation are preferred to
legal or judicial procedures as is the case for bilateral agreements.[89]
In which case, reception and enforcement would be left to states’ willingness.
If so, individuals may not easily have the African Court’s judgments enforced
against states and obtain subsequent reparation or compensation.

The present report being a
prospective study on forthcoming decisions of the African Court, an analysis of
existing similar initiatives is relevant for comparative case studies.

6. Overview of the Country’s
Membership to Regional Bodies and Procedure for Enforcement of Decisions of Regional
Courts

Initially ignored by the
legislature, conditions for the effectiveness of foreign judgments were
organised and set out by jurisprudence.[90] This praetorian work has been
completed later by norms, namely regional treaties, most of which in the
context of Francophone Africa pursue integration on political, economic
(including business) and monetary matters. By setting up conditions for
enforcement of foreign judgments, both jurisprudence and norms logically deal
with “decisions exempted from exequatur.”
The general nature of such decisions is quite relevant to the present case
study. Even arbitration sentences are subject to exequatur prior to their enforcement.[91] Both
African regional and international judicial bodies can be cited as examples.
Among others, the supranational Common Court of Justice and Arbitration based
in Abidjan, the International Criminal Tribunal for Rwanda,[92] or the
International Court of Justice,[93] are directly enforced in the
territories of member states, notwithstanding any anterior or posterior
contradictory legislation. This has arguably led to the qualification of such
judgments as ‘offshore’ and their courts of origin as ‘federal supreme
jurisdictions’.[94] Senegal is member of three relevant
regional organizations with judicial bodies. Those are the Economic Community
of West African States (ECOWAS),[95] the West African Economic and
Monetary Union (in French UEMOA),[96] and the Organization on the
Harmonization of Business Law in Africa (OHBLA, in French OHADA).[97]

Under the Port-Louis Treaty of
1993 which created OHADA, judgments of the Common Court of Justice and
Arbitration (CCJA) are exempted from exequatur
in all the states’ parties.[98] As reads Article 20 of the Treaty:

The judgments of the Court are
final and conclusive; execution and enforcement shall be ensured by Contracting
States on their respective territories; in no case may a decision contrary to a
judgment of the Court be lawfully executed in a territory of a Contracting
State.

Further, under Article 41 of the
Rules of Procedure of the Common Court, its judgments gain enforceability from
the date of their issuing. The judgments carry supranational ‘authority,’ ‘no
further domestic procedure being necessary for them to impose themselves with
binding force on the territories of States Parties.’[99] Yet,
these judgments are enforced subject to the rules of civil procedure in force
in the state on the territory of which enforcement is sought. Though such
execution is subject to the apposition on the judgment of the “execution
formula” (enforcement ordinance) by the “competent national authority,” ‘it is
about no more than checking the authenticity of the judgment.’[100] It is
right that OHBLA is a particular initiative in itself. Actually, it is a unique
harmonisation initiative in Africa and even in the world in terms of creating a
‘unique, modern and relevant business law.’[101] This may explain the
precise language of the Treaty, as opposed to the vague formulation of human
rights conventions in general. Both the drafting history and the language of
the treaty show the unequivocal intention of the drafters to create a “common
court,” the judgments of which are placed on the same footing with domestic
judgments. Reading from the above provisions, the CCJA’s judgments are even
given precedent over domestic judgments. To avoid any domestic impediment to
treaty-based adjudications, even arbitral sentences rendered by the Court’s
Arbitration Centre are granted exequatur
by the President of the CCJA.[102] Then the arbitral sentence can be
enforced subject to the “execution formula,” which, though considered as mere
formality, cannot be refused in any case.[103] None of the Treaty
and the Court’s Rules of Procedure indicates which domestic court is competent
to appose the “execution formula.” In any case, first instance and appeal
domestic courts are competent to adjudicate the treaty law. Only domestic
courts of cassation have been deprived of their competence to the benefit of
the common court. Implicitly, lower domestic courts’ judges are competent to
appose the required formula in matters covered by the harmonised treaty law.

Similarly, at a sub-regional
level, judgments of the Community Court of Justice of ECOWAS[104] should
receive direct enforcement by domestic courts without any particular procedural
measures.[105] Article 76 of the Revised Treaty
provides that ‘the decision of the Court – which is final and not subject
to appeal – shall be binding on the Member States, the Institutions of
the Community and on individuals and corporate bodies.’ While national courts
are competent to enforce ECOWAS Court’s judgments, there is no normative or
procedural provision indicating which specific domestic court is meant. With
regards to this, the incumbent President of the Court confidently put: ‘We
trust that, with these provisions, which are sufficient, we offer all
guarantees that decisions of the Court shall be executed.’[106] In a
comparative approach, it is worth noting that provisions related to enforcement
under ECOWAS are not as strong as those provided by the OHBLA Treaty. At least
one explanation can be given for this. While CCJA settles private disputes, the
West African Court’s judgments may seek enforcement against states, especially
in the perspective of the recent extension of the Court’s mandate to human
rights matters. During recent sensitization visits in Senegal, the President
acknowledged difficulties related to enforcement by declaring that ‘the Court
is working in close harmony with national jurisdictions for the implementation
of its decisions.’[107] The language of enforcement
procedures under OHBLA seems to be more imperative, but very recent case law
developments, namely related to the human rights mandate of ECOWAS Court of
Justice, open new avenues.[108]

Established as a judicial organ of
an economic and monetary community, the Court of Justice of UEMOA is dedicated
to adjudication and interpretation of community law for a jurisprudential
harmonisation within the community. Under Article 57 of Rule No. 01/96/CM of
the Union, ‘the decisions of the court have mandatory force from the date of
their pronouncements.’[109] As under OHBLA, execution is subject
to municipal civil procedure limited to verification of authenticity of the
judgment. Verification is assigned to a ‘national authority to be designated by
Government.’[110]

To conclude on this overview of
regional experiences, foreign judgments as issued by treaty bodies (international
judgments) receive direct municipal enforcement notwithstanding exequatur, which applies only to foreign
national judgments. Exception is made for arbitration decisions enforceable
subject to exequatur by the
supranational courts or municipal judge. Even though there may be slight
differences , primarily with regard to the wordings of these regional norms and
the subject matter of the considered treaty and judicial bodies, the African
Court’s judgements are doubtless foreign international judgments. They should
thus receive direct enforcement, at the most upon “execution formula” aimed to
the sole verification of their authenticity. However, reading both the African
Charter and the Court Protocol and referring to experiences of the African system,
the forthcoming judgments will mostly seek enforcement against States Parties.
The standing issue is therefore whether and to what extent the African Court’s
judgments will fit into the existing enforcement framework and procedures,
keeping an eye on national and regional experiences in the Senegalese context.

Part II: The African System

7. The African Charter on Human and Peoples’ Rights

Senegal ratified the ACHPR on 13
August 1982. The domestic effect of the ratification of international human rights
treaties has been discussed infra.

7.1 The Protocol to the
African Charter on the Establishment of the African Court on Human and Peoples’
Rights

Senegal ratified the Court’s
Protocol on 29 September 1998 but is yet to make the required declaration
recognising the competence of the Court to receive individual complaints.
Nonetheless, both Francophone Africa practitioners (including judges) and
scholars recognise a convergence between dualism and monism on the reception
and direct applicability of IHRL in the municipal order.[111] The
African Court’s Protocol is meant to implement African Charter rights, which
are expressly recognised by the Constitution of Senegal. As any other country
of French law tradition, Senegal recognises the constitutional value of IHRL
norms.[112] Yet, there remain real concerns
regarding these norms. First, IHRL seems to be ‘sick of their norms.’[113]
They impose equivocal obligations on states and do not provide for enforcement
rules that are precise enough to avoid practical difficulties. Considering that
community law, namely regional, economic, and political experiences, provide
for more imperative implementation language, commentators have proposed to work
towards a community human rights law.[114] It is suggested that African human
rights law is community human rights law by nature. Second, the issue is the
enforcement of judgments against states. The African Court’s Protocol clearly
indicates that states shall comply with the judgments of the Court and
guarantee their execution.[115] State parties, therefore, are
implicitly given discretion not only to set up the procedure but also to
designate the body in charge of implementation. Major problems stem from here.
Provision on a declaration of competence and absence of provision on both the procedure
and competent enforcement body appear as purposive accommodations which states
granted them. Moreover, the clarity of states’ obligation to comply with and
guarantee execution is questionable. It may lead to divergent national ways of
implementing judgments. Demonstrably, states seem to have given themselves
sufficient margin to recover from the absence of provisions on reservations. As
duty bearers, should states be given completes discretion to guarantee
execution of judgments? While the African Court’s judgments have binding effect
in Senegal, can their enforcement be ensured?

French practice distinguishes
between the “force obligatoire” and
the “force exécutoire” of
international foreign judgments.[116]

For instance, judgments of the
European Communities’ Court of Justice carry both forces on the territories of
States Parties, and judgments against private persons are enforced without exequatur. In comparison, authority and
direct enforcement of the European Human Rights Court’s judgments seem to be
more problematic. Indeed, Contracting Parties ‘undertake to abide’ by the final
judgments of the Court with “force
obligatoire.”[117] The difficulty resides in the fact
that municipal judgments deemed contrary can neither be annulled nor revised by
the European Human Rights Court. Hence, the Court’s judgments lack “force exécutoire.” Hence, it is up to
states to undertake necessary measures to ensure appropriate reparation for
victims and avoid future similar violations. However, such obligation of means
does not absolve states from concrete results, and delayed execution is
subjected to the control of the Court. Furthermore, even though judgments
oblige only litigants, the Court has heard that it has competence to go beyond
and ‘clarify, safeguard and develop conventional norms.’[118] This
pronouncement of the Court has been qualified in doctrine as an “interpretative
authority.” Subsequently, the Court considered that states should harmonise
their legislation with its jurisprudence without waiting to be called in an
eventual dispute.[119]

Both the African Charter and the Court’s Protocol fulfil
the conditions for direct enforcement of the African Court’s judgments in
Senegal. While a framework exists, its relevance and effectiveness to this case
study are questionable particularly considering that judgments will be enforced
against states. Besides, the existing procedure and institutional framework do
not seem to have been designed for IHRL adjudications to fit in. Considering
all this, it is advisable to take the Senegalese state as a serious stakeholder
in the implementation of the African Court’s judgments. Other political,
administrative, and civil society bodies would be very important stakeholders
as well to achieve a comprehensive and effective implementation of the African
Court Protocol in Senegal. Hence, it is useful to undertake an overview of
these institutions by pointing out in which way they will contribute to the
project. The following seem to be the most relevant:

The Presidency: The
Legal Cabinet and the Secretary General of the Government

These two
governmental agencies deal with the preparatory work on the ground as far as
the drafting of national legislation is concerned. They act as legal advisors
to the President of the Republic, the Prime Minister, and the government in
general. The Secretary General of the government will undoubtedly play a key
role in the enforcement of the judgments of the African Human Rights Court.
This is because, with the Ministers of Foreign Affairs and of Justice, and the
Judicial Agent of the State, the Secretary General forms the executive arm of
the enforcement of international decisions against Senegal.[120]

The Prime Minister and
the Government

The Prime Minister is
the chief of the government, who implements the policies of the government and
ensures the enforcement of laws.[121] These attributions vest in the Prime
Minister of Senegal the very executive power involving the coordination of
government functioning. Thus, the Prime Minister will play an important part in
any domestic enforcement procedure, especially for judgments in favour of
individuals against the state.

The Ministry of Justice

In charge of the
judiciary, administration of justice, and judges’ offices, the Minister of
Justice should assess and introduce to the government any documents (civil and
criminal procedure codes, rules of procedure, procedural codes and others used
by the judicial administration) inconsistent with the African Human Rights
Court Protocol.

The Judicial Agent of
the State

Acting under the
authority of the Minister of Finance, this Agent plays a key role in the
material enforcement of foreign or international judgments. He or she is the
legal representative of the state in judicial proceedings and is in charge of
reparations – chiefly payment of monetary compensation.

The Judiciary

The judiciary is the
monitoring body in charge of verifying the constitutionality of legislation
(the Constitutional Council in Senegal). Further, high courts may be called to
decide on cases of refusal of enforcement ordinance or execution formula to be
apposed on judgments of the African Human Rights Court. An issue here is
whether the Senegalese Constitutional Council, which lacks proprio mutu power, can launch a procedure in case of delayed
implementation due to the state, for example. The African Court Protocol is
clear on the law that parties to a case shall be notified the subsequent
judgment. Yet, States Parties are guarantors of their compliance with the
judgments in any case to which they are parties. Implicitly, once individual
parties to a case are notified of the Court’s judgment, they will first need a
minimum of execution ordinance to have it enforced. In this case, the
Constitutional Council, the Council of State, and the Court of Cassation may
have a particular role. Individuals may complain of the refusal of ordinance, ad vitam eternam delay of payment by the
state or any other, as a breach of both the African Charter and Court Protocol.
Besides, in case of refusal, judges render an ordinance of refusal, which can
be challenge for unconstitutionality in a proceeding before the State Council
and Court of Cassation. The Constitutional Council will then be called to
decide the case.

The Legislature (the
National Assembly)

It gives the authorization
of publication,[122] but shall also enact all legislation
for the purpose of ensuring compliance of the domestic order with the African
Court Protocol.[123] Moreover, the National Assembly is a
key institution in the process of giving effect to orders and decisions of
international judicial bodies. Indeed, Parliament holds the major legislative
power and as such will be the cornerstone of any legislative reform aiming at
repealing a particular law or passing new legislation in order to facilitate
the enforcement of foreign judgments.

The involvement of other
institutions than those described above, such as the Senegalese Human Rights
Committee and the Women’s National Consultative Council,[124] will
be useful in enforcing the African Court’s Protocol. Because the African
Court’s judgments will mostly seek enforcement against states, particular civil
society involvement is necessary at all stages. Amicable settlement cases in
Senegal[125] and elsewhere[126] have
proved to be to the disadvantage of victims. At the end of the day, victims
receive what states offer and get it whenever governments decide to pay.

Part III: Conclusions
and Recommendations

8. Conclusions

Under the African Charter and the
African Court Protocol, the African Court does not expressly have the power to
ensure the enforcement of its judgments[127] apart from reporting
to the AU Assembly the cases in which states have not complied with judgments.[128]
Implicitly, the task of enforcement is left to State Parties. In Senegal, the
African Court’s judgments are international foreign judgments to which the
existing procedure, the exequatur, is
not relevant. Actually, the African Court’s judgements gain status of municipal
judgments by virtue of the direct applicability of the Protocol in the
Senegalese domestic order. As municipal judgments, they will thus need at last
a municipal ordinance to be enforced, this being only a formality, refusal of
which may be considered as a breach of the considered conventions. The standing
issue is whether a state will generously help in enforcing judgments against
itself. This leads to suggest that political unwillingness would be a major
constraint in the implementation and achievement of the required adaptations at
both national and continental levels.

At the continental level, both the
Assembly of Heads of State and Government and the African Union Executive
Council should play a key role in providing for legislation and institutions at
the national level. This is because, firstly, any decision of the Court shall
be transferred to the state parties.[129] Further, as far as the Executive
Council is concerned, it shall not only be notified of the decision, but also
monitor the latter’s execution on behalf of the Assembly.[130]

The AU Assembly can ensure the
integrity of the AU and the African human rights system by adopting political
measures deemed necessary for the enforcement of the decisions of the Court.

9. Recommendations

In order for the African Court’s
Protocol to meet efficient enforcement in Senegal, the state and other
stakeholders will have to work together in order to:

Pass a law
organising and defining the procedure for enforcement of international
judgments. It must consider the irrelevance of exequatur and the shortcomings of the municipal judge holding exclusive
power to grant or refuse enforcement visas, which may not be efficient in
ensuring effective human rights justice and timely remedies. Therefore,
any measure shall provide for a shorter time and quicker procedure for
enforcement;

Amend the Constitution
and/or establish a new Constitutional Court and provide easier individual
access to the constitutional institution. This would give individuals a
more effective remedy in case of breach of the eventual law organising
enforcement or even to challenge the refusal of enforcement ordinance or
unduly delayed payment;

Provide for
special funds devoted to monetary aspects related to the enforcement of
international judgments (legal assistance, procedure fees and monetary
compensation);

Set up an
independent body in charge of the implementation and monitoring of
enforcement. The independence of the judiciary and the general unwillingness
of states to obey unfavourable decisions shall be borne in mind. The ad hoc body should be composed of
members of the judiciary, government officials and representatives of
national human rights organizations; and

Raise awareness
among all stakeholders, especially the judiciary and executive, and ensure
a strong civil society mobilisation and permanent involvement in various
processes.

As a
matter of urgency, making the necessary declaration on the African Court’s
competence would be the starting point to show Senegal’s good faith to fulfil
its commitments under both the African Charter and the African Court Protocol.

[1] Senegal
is divided into 11 administrative regions, each headed by a governor appointed
by and responsible to the President of the Republic. The law on
decentralization, which came into effect in January 1997, gave significant
central government authority to regional assemblies.

[2] As
adopted on 22 January 2001 and amended in 2003, 2006 and 2007. For the
Constitution including the five subsequent amendments, see Constitution de
la République du Sénégal du 22 Janvier 2001 available at
http://www.gouv.sn/textes/Constitution_sn.pdf (accessed 25 September 2007).

[7] Namely
in case of treason, article 100 and 101 of the Constitution. The High Court of
Justice amongst others presides over impeachments proceedings.

[8] The
Conseil Supérieur de la Magistrature
(in French), the equivalent of the National Judicial Council in most of common
law countries.

[9] Cases
are essentially subject to French law and reference document is the French
Civil Napoléon Code of 1804.

[10] E.g.
polygamy is still permitted up to four wives, husband is head of family and
choice of residence lies with him. Whichever parents have child custody, the
father remains guardian unless he is unable to fulfil the role. Succession is
governed by Muslim succession section of the Family Code.

[11] The
parliament of Senegal was unicameral before 1999 and from 2001 to 2007. The
return to bicameralism since May 2007 is organized in the National Assembly as
the lower house and the Senate as the upper house of the Parliament. The 100
Senate seats include 65 appointed by the President and 35 elected by about 12,
000 deputies and local councillors.

[13] Relations
between domestic and international legal orders are discussed later in the
paper.

[14] Main
legislative sources include codes, the Official Gazette and web sources such as
Natlex Senegal (for labour, social security and human rights related), Global
Legal Monitor Senegal (for new laws passed), and World Legal Information
Institute. Two mains links lead to further relevant and more detailed
information: http://www.loc.gov/law/help/guide/nations/senegal.php (accessed on
26 January 2009) and
http://www.loc.gov/lawweb/servlet/lloc_news?browse_country_Senegal (accessed on
29 January 2009).

[37] See
J Dugard International law A South
African perspective (2005) 47.

[38] In
any case, Senegal has accepted the primacy of international human rights
standards over national legislation. See para 10 of the Human Rights Committee’s
Concluding Observations CCPR/C/79/Add.82 of 19 November 1997 on Senegal’s report
(accessed 27 September 2007).

[40] V
Leary International Labour Conventions
and National Law (1982) in MCR Craven ‘Domestic Application of the
International Covenant on Economic, Social and Cultural Rights’ Netherlands International Law Journal
(1993).

[41] These
rights are settled as justiciable on the basis of the Constitution and
jurisprudence even though the country is yet to ratify the ICESCR. See F
Viljoen ‘The Justiciability of Socio-economic and Cultural Rights: Experience
and Problems’ (Unpublished paper on file with the author) 15.

[43] The
same organisation has been adopted by Craven (n 40 above) 382-394 and CM
Vazquez ‘The Four Doctrines of Self Executing Treaties’ The American Journal of International Law Vol. 89 No 4 (1995) 711.

[45] In
the paper they presented during the colloquium, the Senegalese judges
themselves referred to only two cases: Sega
Seck Fall case of 29 January 1975 decided by the then Supreme Court of
Senegal and the Habré case of 20
March 2001 decided by the Court of Cassation.

[51] See
BC Mbaye ‘The Hows and Whys of Promoting the entry into force of the Protocol
to the ACHPR on the Establishment of an ACtHPR’ (Unpublished paper on file with
the author) 10. Annexed to this report are samples of contents of Authorisation
Act, Decree of Publication and Letter of Ratification.

[52] In
Senegal, the Constitutional Council is vested in such mission. Under article 92
of the Constitution, ‘The Constitutional Court shall decide on the
constitutionality of laws and international engagements …’.

[53] As
provided under article 97 on inconsistencies between international law and the
Constitution.

[54] Two
constitutional provisions are relevant to human rights treaties. First, article
96 provides that ‘treaties … which concern the status of persons … shall be
ratified or approved only by virtue of a law’. Second, the legislative
prerogatives of the Parliament and subsequent procedure are set down under
article 74(2) of the Constitution that reads ‘the Constitutional Court may be
seated for the purpose of having a law declared unconstitutional … by a number
of Deputies at least equal to a tenth of the members of the National Assembly
…’.

[55] On
the difference between ‘domestic validity’ and ‘domestic applicability’, see in
general Craven (n 40 above).

[56] As
developed in the Habré case for non
self executing status and in the Sega
Seck Fall case for lack of publication among other reasons. See n 45 above.

[57] E.g
for lack of publication in Decision DCC 03-009 of 19 February 2003.

[69] In-country
expert for Senegal, Mr Kane, ascertained that Senegalese case law on the
application of international human rights law is very poor (consultation
through harmonisation yahoo group, email of 15 October 2007).

[75] Article
789 of the Code of Civil Procedure of Senegal. For other details on the
procedure of exequatur see Livre V of the Code of Civil
Procedure of Senegal articles 787-794 ‘Execution of Foreign Acts and
Decisions’.

[98] See
J Mbosso ‘The role of national jurisdictions and harmonized law’ International Business Law Journal
European Communication Forum No 2 (2002) 216.

[99] See
B Martor et al.Le Droit Uniforme Africain des Affaires issu de l’OHADA
Juris-Classeur (Ed) (2004) 15. However, articles 47, 48 and 49
of the Court’s Rules of Procedures provide for three extraordinary appeals: the
opposition of third parties, which rights the judgments are deemed to infringe,
an action in revision in case of new facts and the request for interpretation
of a judgment.

[100] As reads
article 46 of the CCJA’s Rules of Procedure. See Martor as above.

[104] The
Economic Community of West African States, which comprises 15 member states. In
2006, the jurisdiction of the Court has recently been extended to human rights
violations hearings and the inclusion of the rights provided under the African
Charter is underway (see article 9 of the revised Supplementary Protocol of the
Community Court). After this, individuals from the community may also bring
complaints before the Court. For
comprehensive details see Panapress ‘Dix Plaintes déposées devant
la Cour de Justice de la CEDEAO’ (accessed 4 October 2007).

[108] In
October 2008, the Community Court of Justice decided a landmark slavery case
known as the Hadidjatou Jugement of
the name of a Niger 24 years old woman sold in slavery while aged 12 and used
for labor and sex by her owner for over ten years. Niger was fined by the
ECOWAS Court of Justice the equivalent of $24,000 for failing to protect the
woman. Spokesperson of the Government publicly declared that Niger will respect
the judgment.

[112] From
the jurisprudence of the French Court of Cassation Dame Pauline case of 2 June 2000 RGDIP-2000/3 at 810-824 and State Council Assemblée du Contentieux Sarran case of 30 October 1998-Rec at 368.

[125] To
our knowledge, Senegal is yet to pay damages as agreed on under amicable
settlement procedure in the Famara Koné
case. The victim has been waiting reparations for more than a decade now.

[126] For
instance in Benin Constitutional Court Favi
case DCC 02-058 of 4 June 2002. Three years after the Constitutional Court’s
judgment, the state decided to pay the monetary damages but not about 2000
Euros interest order by the same Court.